RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            21 OCTOBER 2004
      DOCKET NUMBER:   AR2004102452


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Kenneth H. Aucock             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James Anderholm               |     |Chairperson          |
|     |Ms. Deborah Jacobs                |     |Member               |
|     |Mr. Ronald Weaver                 |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his record be corrected to show that he has
       20 years of active federal service for retirement purposes, or
barring that,          20 qualifying years of service for Reserve retired
pay at age 60.

2.  The applicant states that at the time of his discharge he had 17 years
and      6 months of active service, and was informed that he did not have
an 18-year lock in.  Consequently, he had to be discharged because of
disability and receive severance pay.  Now he has been told that he has
over 18 years of service.  He has paid to the Department of Veterans
Affairs (VA) the $66,556.80 in severance pay that he received.  He was in
active service for 19 years or more and received nothing for that time.
His service at the time that he was discharged was inaccurately computed.
He should at least get a 20 year letter and retire at      age 60, with
military identification card and all retirement benefits.  Had he known
that he had over 18 years of service he could have obtained an AGR (Active
Guard/Reserve) tour [to obtain 20 years of service].  He was the top AGR
recruiter for four years in New Jersey.  He could have retired in pay grade
E-9.

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty), a copy of reassignment orders,
copies of statements of retirement points, a copy of his DA Form 2-1 and DA
Form 2A (Personnel Qualification Record), and information concerning his
years of service creditable for retirement, and his retirement points.

CONSIDERATION OF EVIDENCE:

1.  The applicant served in the Navy Reserve from 1962 to 1965.  He
enlisted in the Army on 27 March 1965 and remained on continuous active
duty until his discharge on 20 June 1974 in pay grade E-5.  The applicant
served in Germany and had two tours of duty in Vietnam.  His awards include
the Purple Heart, the Army Commendation Medal with "V" device, and the Air
Medal with "V" device.

2.  The applicant's DA Form 2-1 shows that he enlisted in the Army National
Guard in April 1980 and was assigned to a maintenance company in Phoenix,
Arizona.  He was transferred to the Inactive National Guard on 20 August
1983.  In November 1985 he was assigned to an Army Reserve unit,
subsequently ordered to an active duty tour of duty for 41 days, and in
June 1986 ordered to active duty as a recruiter on an AGR tour with duty in
Irvington, New Jersey.

3.  The applicant was discharged at Fort Meade, Maryland on 13 February
1991 under the provisions of Army Regulation 635-40 because of physical
disability.  Orders show that he was awarded a 20 percent disability
rating.  His                 DD Form 214 shows that he was awarded
severance pay in the amount of $66,556.80.  His DD Form 214 shows that he
had almost 16 years of active service, and over 6 years of inactive
service.

4.  The applicant's chronological statement of retirement points, dated 2
October 2003, shows that he had 18 years, 3 months, and 17 days of
qualifying service for retired pay at age 60.  He had 16 plus years of
active service, which includes his active duty service while in a Reserve
component, but only 2 "good" years of Reserve component service.

5.  Other than as indicated herein, there are no available records
concerning the applicant's Reserve component service, nor any record
concerning his physical disability processing.

6.  Title 10, United States Code, chapter 61, provides disability
retirement or separation for a member who is physically unfit to perform
the duties of his office, rank, grade or rating because of disability
incurred while entitled to basic pay.

7.  Title 10, United States Code, section 1203, provides for the physical
disability separation of a member who has less than 20 years service and a
disability rated at less than 30 percent.

8.  Army Regulation 635-40 states that the Total Army Personnel Command
(PERSCOM) will issue orders or other disposition instructions for a Soldier
separated for physical disability with severance pay.

9.  Army Regulation 135-180 implements statutory authorities governing the
granting of retired pay to Soldiers and former Reserve Component Soldiers.
Paragraph 2-1 of that regulation states, in pertinent part, that to be
eligible for retired pay, an individual need not have a military status at
the time of application, but must have attained age 60, completed a minimum
of 20 years of qualifying service, and served the last 8 years (since
changed to 6 years under certain circumstances) of his qualifying service
as a Reserve component Soldier.

10.  Paragraph 2-8 of the above-mentioned regulation describes qualifying
service, as pertains to this case, as service performed in an active status
in a Reserve component or in active federal service.  After 30 June 1949, a
Reservist must earn a minimum of 50 retirement points each retirement year
to have that year credited as qualifying service, e.g. a "good year."  When
a person is in an active status for a period less than a full retirement
year, a minimum number of retirement points are required to be earned in
order to have that period credited as qualifying service.

11.  Section 1212 of title 10, United States Code, addresses eligibility
for disability severance pay by members of the Armed Forces.  The
provisions of section 1212(c) govern the recoupment of disability severance
pay from VA disability compensation payable for the same disability.
Section 1212(c) provides in pertinent part that, “[t]he amount of
disability severance pay received under this section shall be deducted from
any compensation for the same disability to which the former member of the
armed forces or his dependents become entitled under any law administered
by the Department of Veterans Affairs.”

DISCUSSION AND CONCLUSIONS:

1.  Although evidence concerning the applicant's physical disability
processing is unavailable, regularity is presumed, that is, the applicant
was physically unfit to perform his duties and was discharged accordingly.
The applicant has provided no evidence to refute that presumption.

2.  The applicant had over 16 years of active federal service, and 2 "good"
years of service in the Army National Guard.  The applicant did not have 20
qualifying years of service for retired pay at age 60, and cannot receive
retired pay at     age 60.  Notwithstanding his assumption, there is no 18-
year lock in.  He was unable to perform his duties because of his physical
disability.  He could not have obtained an AGR tour of duty as he contends.
 The applicant's discharge was mandatory under the law.

3.  The applicant has submitted neither probative evidence nor a convincing
argument in support of his request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JA___  ___DJ___  ___RW__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.





            ___ James Anderholm_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004102452                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20041021                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |136.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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